Copyright Infringement Issues When Using Third Party Material in Podcasts
By: Erin M. Jacobson
Published in Entertainment and Sports Lawyer, A Publication of the ABA Forum on the Entertainment and Sports Industries, Vol. 26, No. 1, Spring 2008
Although a relatively new phenomenon, podcasting has caught on quickly. It has created a new outlet for creators and listeners alike, as well as a host of new legal issues.
As discussed in a previous Entertainment and Sports Lawyer article, "Podcasting 101" by Michael Geoghegan and Dan Klass, podcasts started as written blogs, which evolved into audio-blogs and then became podcasts, which are digital media files that can be downloaded to a computer, transferred to a portable media player and played back on either device. Most people subscribe to podcasts via an RSS ("Really Simple Syndication") feed that can be accessed through most Internet browsers, the iTunes Music Store and other "podcatcher" programs. This syndication model allows the user to receive automatic updates when new podcast episodes are available for download. Based on the preference settings in the user's desired medium, newly available episodes may be automatically downloaded to the user's computer. More recently, podcasts have expanded from only talk to include comedy and music. Audio podcasts have also been enhanced to include images and video, known as "vidcasts." With these expanded formats and use of third party content, many legal issues arose and are discussed below. This discussion presumes that any third party work is either copyrightable subject matter or holds the presumption of a valid copyright.
General Issues Regarding Copyright Infringement When Using Third Party Material in a Podcast
A third party work is reproduced when included within a podcast because the podcast is a new entity. For example, if a podcaster includes a recording of a musical composition in his podcast, both the musical composition and sound recording have been reproduced when copied into the new podcast file. In addition, if a podcaster reads the text from a literary work in his podcast, that literary work is being reproduced when podcaster records it.
When first recorded, podcasts are often in full bandwidth .wav or .aiff files. From that full bandwidth file, a new, compressed .mp3 file is created for distribution. While the public generally does not have access to the original full bandwidth file, copying it to another compressed file is another reproduction. The third party work is reproduced again when a listener downloads the podcast because a new copy of the file is created on the listener's computer. Further, another reproduction occurs if a listener copies the podcast from his computer to his MP3 player, however a fair use defense could be raised in this scenario.
By design, posting something on the Internet makes it widely available to anyone, anywhere. Therefore, third party work included in a podcast is distributed as soon as it is made available on a blog, website, or RSS feed. Most podcast .mp3 files do not have any Digital Rights Management (DRM) attached, so people are free to share these files. Not only is the podcaster distributing the third party material, but also other people may be distributing both the podcast and the third party material embodied within. This lack of DRM may be interpreted as the podcaster giving others an implied license to use the third party material.
The public performance right in a third-party work may be infringed if it is embodied within the podcast. While private use of a podcast from a listener's computer or MP3 player would be a performance, it generally does not infringe the public performance right because this type of performance is in the home or for one person; it is not public. Furthermore, even though a podcast is probably considered a public medium, it may not be a performance. The digital transmission of downloading an .mp3 file has been held not to be a performance because it is only a data transmission. Therefore, the download of a podcast would not violate the public performance right of any third party content within.
On the other hand, if a user were to download a podcast and play it in a public place or in a location "where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered," then that performance would infringe the public performance right in the third party work. Including an audiovisual work as part of a video podcast or "vidcast" may be an infringement of the public performance right in the original audiovisual work. In the area of music, if someone streamed or played-back a podcast in a public manner, the performance of the musical composition would be subject to performance royalties payable to the applicable performance rights organization. The performance of the sound recording would also be subject to royalties under section 106(6) of the Copyright code, which can be addressed by either a statutory license or a consensual license from the content owner.
There are two ways the adaptation right of third party material may be infringed when included in a podcast. The first way is by including third party material in the podcast as a compilation. For example, including a sound recording of a musical composition as part of a radio-style show. Pursuant to the copyright in compilations, the podcaster owns the copyright in the podcast as a new work, and the owners of the sound recording and musical composition retain ownership in their respective works. However, including a sound recording and musical composition as part of a compilation may infringe on the adaptation right of the original works because the use may limit the content owners from making their own compilations including the same works or licensing others to do the same. This also holds true for audio-visual and literary works.
The second way the adaptation right may be infringed is when the third party material is altered for use in the podcast. In a radio-style podcast, the podcaster will sometimes alter the third party material by making a parody of a musical composition. This would likely be an infringement, but a fair use defense may be available. Also in a radio-style podcast, portions of sound recordings containing musical compositions may be used without permission in imaging (produced segments to promote the podcast itself), which is also an infringement. For video podcasts, infringement could stem from actors performing a parody of a scene from a motion picture or television show, or splicing various audiovisual clips from different sources together to create a new work. Third party material may also be edited for time constraints or offensive content; however, an alteration of this nature would not likely give rise to a dispute.
Possible infringement of the public display right in an audio podcast may be relevant in regard to a podcaster's website. A podcaster may infringe the public display right if he posts album artwork from a sound recording played on the podcast or posts lyrics or images of sheet music of a musical composition included in the podcast on his website. Regarding vidcasts, the public display right may be infringed when a vidcast includes an audio-visual clip, a still image or sheet music; and when that vidcast is posted on a website.
Specific Issues Regarding Copyright Infringement When Using Third Party Music in a Podcast
For audio podcasts, the podcaster must obtain licenses from the performance rights organizations (for the performance of musical compositions), The Harry Fox Agency (for mechanical licenses to reproduce musical compositions), and the owner of the sound recording (if the original sound recording will be used).
For video podcasts, the necessary licenses required are synchronization licenses, master use licenses, and videogram licenses. However, these license schemes were developed for pre-podcast uses, so their compatibility with podcasting is sometimes unclear. The synchronization license is for the use of a musical composition because it will be "synched" with the visual work. A sync license is negotiated with the copyright owner of the musical composition, usually the music publisher. However, there is no specific scheme as to how sync licenses are used with vidcasting because of the novelty of the technology and its attributes. If a sound recording will be used, a master use license is needed. This license is negotiated with the owner of the sound recording, usually the record company. A videogram license may also be necessary, but is traditionally used to include a musical composition on a VHS or DVD and may be superfluous when sync and master use licenses have already been secured.
Other Issues When Using Third Party Material in a Podcast
When a podcaster comments unfavorably about another person, the podcaster must be cautious with his commentary or may risk a possible suit for defamation.
"Publicity Rights allow individuals to control how their voice, image or likeness is used for commercial purposes in public." If someone is interviewed for a podcast or vidcast, it may be necessary to get their permission to use the interview in the podcast; due to publicity rights issues and the possible argument that the interview is a joint work making the interviewee a co-owner. Rights of publicity in an interview also come into play if the podcaster uses the interview and/or interviewee's image, voice, or likeness to promote the podcast itself. Examples of this include: a podcaster using a sound-alike, not in a parodying manner, to impersonate a celebrity; and posting photos of a person, such as an interviewee, on the podcaster's website, even if the podcaster has permission from the photographer to use the photograph.
Issues Regarding Ownership of the Podcast Itself
Like any other form of intellectual property, most creators and owners want to protect their interests and prevent others from copying their projects. A podcaster will most likely have a name for his podcast, possibly accompanied by a logo, for which the podcaster may wish to apply for a trademark or servicemark. When choosing a podcast name and logo, the podcaster must be careful not to infringe on any existing trademarks or create confusion between his desired mark and an existing one.
A podcaster may wish to take steps to protect his show by securing some form of protection for each episode. However, this method is time-consuming, expensive and infrequently used except when the podcast episodes are owned by large corporations. Most podcasters take a free and easy way to protect their episodes - the Creative Commons License (www.creativecommons.org). The podcaster fills out a form with questions as to how the work can or cannot be used, and an HTML code is produced specifying the terms of the chosen license to be displayed on the podcasters website and/or blog. The types of Creative Commons licenses are: Attribution Non-Commercial No Derivatives; Attribution Non-Commercial Share Alike; Attribution Non-Commercial; Attribution No Derivatives; Attribution Share Alike; Attribution (by); Public Domain and others available for alternative types of media and music.
Most podcasts are free to download or listen to, and the Performance Right’s Organizations have not developed licenses specifically tailored for practical use in podcasts, save for BMI. Many podcasters either get permission directly from the content owners or use the material without permission and risk an infringement claim against them. Despite the popularity of podcasts, the market is still small and most podcasts do not generate much, if any, revenue. Therefore, many successful content owners may not feel it is worthwhile to go after these minor players. Also, many less successful or "indie" content owners are grateful from the exposure garnered from podcasts. Ultimately, while podcasters should be sensitive to not infringe on the copyrights of others, the decision whether to sue the podcaster lies with the content owners.
This article is Copyright Erin Jacobson 2008. All Rights Reserved and may not be reproduced without express written permission from Erin Jacobson.